State v. Breathette

• Decision Date: 02 March 2010
• Docket Number: No. COA09-1007.,COA09-1007.
• Parties: STATE of North Carolina v. Yasmin Pecolia BREATHETTE, Defendant.
• Court: North Carolina Court of Appeals

690 S.E.2d 1

STATE of North Carolina v. Yasmin Pecolia BREATHETTE, Defendant.

No. COA09-1007.

Court of Appeals of North Carolina.

March 2, 2010.

Appeal by defendant from judgments entered 15 April 2009 by Judge Lindsay R. Davis in Forsyth County Superior Court. Heard in the Court of Appeals 11 January 2010.

Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State.

Mark Montgomery, Durham, for defendant-appellant.

ROBERT C. HUNTER, Judge.

Defendant Yasmin Pecolia Breathette appeals her convictions for taking indecent liberties with a minor. Defendant argues on appeal that the trial court erred by not giving the jury her requested instruction that mistake of age is a valid defense to the offense of indecent liberties. We conclude that mistake of age is not a defense applicable to the charge, and, therefore, the trial court properly refused to instruct the jury on the defense. Consequently, we find no error.

Facts

The State presented evidence at trial tending to establish the following facts: B.W. ("Beth") was born in March 1995 and lived in Taylors, South Carolina with her mother.¹ When Beth was 13 years old she met defendant, who was 19 at the time, on the social networking website MySpace and the two began messaging. Beth's MySpace page indicated that she was 99 years old because she did not "want people to know [her] real age." When defendant asked how old Beth was, Beth told her that she was 17. The two discussed "chilling" together at defendant's apartment, exchanged cell phone numbers, and began texting and calling each other on a daily basis. Defendant, whose MySpace page indicated that she was a lesbian, asked Beth whether she was a lesbian, and Beth told her that she was gay. When texting or talking, they would sometimes discuss "sexual stuff." Sometimes Beth would initiate the sexual conversations and sometimes it was defendant.

Defendant and Beth decided that they wanted to meet in person, so defendant drove from her apartment in Winston-Salem, North Carolina on 4 June 2008, picked up Beth at a designated spot, and drove back to Winston-Salem for the weekend. When defendant and Beth got back to defendant's apartment, they watched TV together and "[t]ongue kiss[ed]."

The next day, 5 June 2008, defendant took Beth over to her friend Francesca's house, where they stayed most of the day. While watching TV, defendant and Beth "made out" on the couch and kissed. Later that night, defendant and Beth went back to defendant's apartment, where they ordered pizza and watched TV and movies. Defendant and Beth later got into defendant's bed, where Beth gave defendant a "hickey" on her neck. Defendant kissed Beth's breast, digitally penetrated her vagina, and performed oral sex on her. After about 10 minutes, they went to sleep.

Defendant and Beth got into an argument on Friday, 6 June 2008, because Beth was "acting childish" and "getting on [defendant's] nerves." Although defendant told Beth that she could not spend the night at defendant's apartment, Beth ultimately spent the night there. Defendant left for work on Saturday morning before Beth woke up and Beth texted and called defendant several times during the day, asking for a ride home. Defendant did not want to drive Beth home and the two fought over the phone while defendant was at work. When defendant's supervisor overheard her yelling loudly on the phone at work, she was fired from her job. Defendant came home, yelling at Beth that she made her lose her job. Defendant collected Beth's things, threw them out into the front yard, and locked her out of the apartment. Beth contacted Amanda, one of defendant's friends that she had met during the weekend, and Amanda let Beth spend Saturday night at her house.

The next day, 8 June 2008, Amanda dropped Beth off at Francesca's house where Beth told Francesca's mother about her fight with defendant and that they had done "sexual stuff." Francesca's mother called the police, who came to get Beth. While there, the police interviewed Beth and she told them that she was 17. Officers took Beth to the police station, where she told them that nothing had happened. Beth's mother arrived in Winston-Salem that evening and drove her home.

Officer J.A. Sheets interviewed defendant on 9 June 2008, at her apartment. Defendant told him that she met Beth on MySpace and that they had met in person because they were interested in dating each other. Defendant also told Officer Sheets that Beth's MySpace page had been changed to indicate that she was 18, although it had originally indicated that she was 21. Defendant told Officer Sheets that they had "fingered" each other, but that only she had performed oral sex. Defendant later texted Beth, asking her why she did not tell defendant her "real age." When Beth responded that she did not know why, defendant texted back that "[Beth] was wrong."

Defendant was charged with two counts of taking indecent liberties with a minor and one count each of first degree kidnapping, first degree sexual offense, and attempted second degree sexual offense. Defendant pled not guilty and a jury trial was conducted 13-15 April 2009. At the close of the State's evidence, defendant moved to dismiss all five charges. The trial court dismissed the charges of kidnapping, first degree sexual offense, and attempted second degree sexual offense, but denied the motion as to the two counts of taking indecent liberties. Defendant then testified that she first came into contact with Beth through MySpace in May 2008. Defendant also found Beth on "downylink.com," a "straight, gay, lesbian, and bisexual Website for people over the age of eighteen." Defendant explained that when she saw Beth on downylink.com, she believed that Beth was over 18 because the website requires all users to verify that they are 18 years old or over. The jury convicted defendant of both charges and the trial court sentenced defendant to two consecutive presumptive-range sentences of 14 to 17 months imprisonment, but suspended the second sentence and imposed 36 months of supervised probation. Defendant timely appealed to this Court.

I. Jury Instructions

A. Mistake of Age Defense

In a written request, defendant asked the trial court to instruct the jury that

[i]f you do find that the defendant was both acting under a belief that the alleged victim was older than 15 years old and that such belief was reasonable, albeit mistaken, then it would be your duty to render a verdict of not guilty to the charges of taking indecent liberties with a child as the defendant lacked the requisite guilty mind to formulate the specific intent to commit the crime.

Defendant argues that the trial court committed reversible error by not instructing the jury that mistake of age is a defense to the charge of taking indecent liberties with a minor.

If a request is made for an instruction that is a correct statement of the law and is supported by the evidence, the trial court must give the instruction, at least in substance. State v. Harvell, 334 N.C. 356, 364, 432 S.E.2d 125, 129 (1993). Failure to instruct on a substantive or material feature of the evidence and the applicable law generally results in reversible error. State v. Ward, 300 N.C. 150, 155, 266 S.E.2d 581, 585 (1980). Any defense raised by the evidence is deemed a substantial feature of the case and requires an instruction. State v. Smarr, 146 N.C.App. 44, 54, 551 S.E.2d 881, 888 (2001), disc. review denied, 355 N.C. 291, 561 S.E.2d 500 (2002).

The State argues that the trial court properly refused to instruct the jury on the mistake of age defense as the defense is inapplicable to the crime of taking indecent liberties with a minor. Relying on Cinema I Video, Inc. v. Thornburg, 83 N.C.App. 544, 351 S.E.2d 305 (1986), aff'd, 320 N.C. 485, 358 S.E.2d 383 (1987), the State maintains that this Court has "expressly recognized" that mistake of age is not a defense to indecent liberties.² In Cinema I Video, this Court stated:

[M]istake of age is not a defense to prosecution for first degree rape, G.S. 14-27.2(a)(1), nor to first-degree sexual offense, G.S. 14-27(a)(1). Moreover, mistake of age is not a defense to the offense of taking indecent liberties with a minor. G.S. 14-202.1.

Id. at 569, 351 S.E.2d at 320 (internal citation omitted) (emphasis added). Defendant vigorously argues in her reply brief that Cinema I Video's language that mistake of age is not a valid defense to indecent liberties is dicta and thus we are not bound by Cinema I Video.

"Language in an opinion not necessary to the decision is obiter dictum and later decisions are not bound thereby." Trustees of Rowan Tech. College v. Hammond Assoc., 313 N.C. 230, 242, 328 S.E.2d 274, 281 (1985). As our Supreme Court has explained, "`general expressions in every opinion are to be taken in connection with the case in which those expressions are used[;] [i]f they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit where the very point is presented for decision.'" State v. Jackson, 353 N.C. 495, 500, 546 S.E.2d 570, 573 (2001) (quoting Moose v. Board of Comm'rs of Alexander County, 172 N.C. 419, 433, 90 S.E. 441, 448-49 (1916)).

In setting out the language at issue here, the Court in Cinema I Video was addressing whether two of North Carolina's child pornography statutes—N.C. Gen.Stat. § 14-190.16 (first degree sexual exploitation of a minor) and N.C. Gen.Stat. § 14-190.17 (second degree sexual exploitation of a minor)— violated the plaintiffs' First Amendment and Due Process rights. 83 N.C.App. at 568, 351 S.E.2d at 320. The indecent liberties statute, N.C. Gen.Stat. § 14-202.1 (2009), was not one of the criminal statutes being challenged by the plaintiffs in Cinema I Video. Thus, the language in Cinema I Video that "mistake of age is not a defense to the offense of taking indecent liberties with a minor" was not necessary to the Court's...